At the 2017 March for life in Washington D.C., thousands of demonstrators advocated for the ending of abortion. (Photo: Melissa Enaje)

NEW YORK – As a case over whether the state of Texas can require fetal remains to be buried is argued in Federal Court this week, the Fifth Circuit Court of Appeals handed the Texas Conference of Catholic Bishops a major victory just hours before opening arguments began, saying they did not have to comply with a third party subpoena that would have required the bishops to release decades of internal correspondence over the issue of abortion.

In a ruling on Sunday, Judge James Ho said a circuit court’s order was a broad overreach that specifically targeted the Texas bishops with an aim to prevent them from engaging in public policy debates.

“It is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case,” wrote Ho.

“The First Amendment expressly guarantees the free exercise of religion – including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains. By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains,” he wrote in a concurring opinion.

In 2017, the Texas Senate passed a bill that would require the cremation or burial of fetal remains. After Texas Governor Greg Abbott signed the bill into law, an ensuing legal battle commenced between the state and Whole Woman’s Health, a network of privately owned abortion clinics.

While the Texas Conference of Catholic Bishops is not a party to the lawsuit, executive director Jennifer Allmon had testified on behalf of the state in 2016 in support of the legislation and later announced that the Catholic Conference would work with Catholic cemeteries throughout the state to provide free burials of fetal remains in order to prevent the legislation, if passed, from becoming financially burdensome.

Critics of the legislation, however, argued that it was designed to add to the costs of abortions, which would be passed on to clients, and that it would further complicate and stigmatize abortion service providers in a state that already has some of the tightest regulations in the country.

In a move that has been described as punitive by Becket Law, who is representing the Conference, Whole Women’s Health subpoenaed the bishops in March 2018 to release internal documents concerning embryonic and fetal tissue remains, miscarriage, or abortion, including deliberations on matters of theology and philosophy, along with all correspondence between state agencies and their employees and any documentation pertaining to the lawsuit.

While the bishops provided more than 4,000 pages of documents, they insisted that all internal communication remain private. Last month, however, a district court ruled that they must turn over all documentation within 24 hours.

The decision, which came down on Father’s Day, June 17, provided a 24-hour window to comply, which the bishops appealed, leading to the 5th Circuit Court of Appeals granting an emergency stay in the case.

Their final ruling, which came down last Sunday in support of the bishops, has allowed Allmon to continue to testify in Federal Court this week without having to turn over internal communication documents.

In his ruling, Ho had particularly strong words criticizing both the timeline and the manner in which the bishops were expected to comply with the requests.

“They leave this Court to wonder if this discovery is sought, inter alia, to retaliate against people of faith for not only believing in the sanctity of life- but also for wanting to do something about it,” he wrote, citing as a reference the recent Supreme Court decision in Masterpiece Cake Shop where the Court sided with a Colorado baker who refused to bake a cake for a gay wedding.

Bishop Brendan Cahill, bishop of Victoria, Texas, praised the Court’s decision stating that, “We are grateful for the Court’s ruling. We believe it will protect religious freedom not just for Catholics, but for Americans of all faiths.”

Eric Rassbach, vice president and senior counsel at Becket, echoed those sentiments, adding “Hitting churches with subpoenas to win the culture wars was a bad idea from the start. We are glad that the Fifth Circuit recognized the deep problems with allowing lawyers to use the power of the court system to probe the private religious discussions of religious groups.”

“That is especially so here, where the plaintiffs oppose the Texas Catholic bishops’ right to participate equally in public discourse. As the Fifth Circuit’s opinion makes clear, courts should not let religious groups get caught in the crossfire on fraught public policy issues like abortion,” he added.

Throughout this week, U.S. District Judge David Alan Ezra will hear arguments on both sides over the legality of the fetal burial law and a decision should be issued within the coming months.

Meanwhile, religious liberty advocates are heralding this as a victory saying that the Church has a right to privacy when it comes to internal discussions on matters of theology and doctrine.

Diana Verm, a lawyer at Becket, told Crux that all religious groups should celebrate the decision.

“The court said that the bishops’ arguments go to the heart of the constitution and its protection of religious belief and that the courts have to take seriously private beliefs – specifically of religious groups,” said Verm